64 Minn. 269 | Minn. | 1896
This was an action to enforce a mechanic’s lien for labor and material furnished by the plaintiff to the de
The only question presented by this appeal is whether plaintiff's right to a lien was waived or discharged by his accepting the promissory notes.
The statute provides that every action to enforce a mechanic’s lien shall be commenced “within one year from the time of furnishing the last item of labor * * * for which such lien is had.” G-. S. 1894, § 6238. Also, that “the taking of a promissory note or other evidence of indebtedness for labor performed or skill, material or machinery furnished, under the provisions of this act, shall not discharge the lien thereby given for the same, unless expressly received in payment therefor and so specified in such note or other evidence of indebtedness.” Id. § 6243. As a lien in favor of laborers and material men is expressly given by statute, it ought not to be considered waived except by plain acts. But it is a right that may be waived by the express agreement of the party in whose favor it exists. It may also be waived by implication arising from his conduct. If he makes a special agreement inconsistent with the right to a lien, the lien will be destroyed; or, otherwise expressed, if he enters into a special contract inconsistent with the operation of the lien, the lien is waived by the legal effect of such contract.
This is a general principle, applicable to all liens created by operation of law. A familiar example of its application is where
Under the statute, an action to enforce plaintiff's lien had to be brought within a year from April 21, 1893. The notes taken by him were entitled to three days’ grace. Gr. S. 1894, § 2237. Hence no action could have been brought against the defendant either to recover the debt or to enforce a lien until April 24, 1894, even under the rule most favorable to plaintiff, which is that an action may be brought on the last day of grace. Therefore, the credit given extended beyond the time within which an action could be brought to enforce the lien; and, under the rule suggested, the plaintiff must be deemed to have voluntarily waived his lien, and relied on the personal credit of the defendant, to whom the credit was given.
Counsel, however, urges that this rule is changed or abolished by the provision of statute that the taking of a promissory note for the labor and material shall not discharge the lien. Counsel, we think, misapprehends the scope of the statute. Its purpose was to
It may work a hardship in this particular case to hold that pliantiff has discharged his lien by extending a credit to defendant three or four days more than one year after the completion of the work, but no other result can be reached except by wholly disregarding well-settled rules of law.
Judgment affirmed.